As well as at the national level, the Republic has a body called the Attorney General of the Republic for legal representation, both in the judicial and extrajudicial fields, the local level also has one whose name is Municipal Court.
It is common to confuse this consulting body with the union, which is a mistake, since this is an institution that represents the labor rights of workers within a public or private organization.
The Receivership is part of the municipal structure. Specifically, within the so-called auxiliary organs.
In effect, the Organic Law of Municipal Public Power (LOPPM, 2010) establishes that, in each municipality, there will be an agency with the rank of auxiliary at the local level, that is, it is the body that provides legal support to the entire Entity and represents it. when there is the need to go to the podium, either actively or passively.
Within the list of powers corresponds to the Municipal Trustees:
- Legally advises the different branches or components of the Municipal Power, through opinions or opinions, submits the ordinance projects and other municipal legal instruments to the consideration of the Mayor, both in their creation and in their modification or elimination. Voice to the sessions of the Municipal Council in the matters of its competence or for which its participation has been requested.Denounces the illicit acts incurred by local officials or employees in the exercise of their functions, as well as any other actions that may be necessary He watches over the proper functioning of the municipal public services, for which he has been called as the great municipal inspector, as he reports on the situation found with the pertinent recommendations.The old Venezuelan Civil Code assigned him functions related to the Civil Registry and in opposition to the celebration of marriages or interdictions. He also plays a role as Fiscal Inspector of the Municipal Treasury.
When a Municipality is sued, the summons of the Procurator Trustee must be made in accordance with the provisions of the LOPPM, under pain of absolute nullity of all actions and grounds for reinstatement to the state of fully complying with such regulations, remaining in the head of the Trustee the legitimacy for the request for replacement. In the same conditions, it must be handled when notifications of any final or interlocutory sentence have to be made; The requirement that the Mayor of the Entity must be notified is also made, clearly differentiating what it means to notify the Procurator Trustee, which is binding and obligatory as the judicial representative of the Municipality, while the head of the executive branch is merely informative.
It is discussed in doctrine if the Municipality has the same privileges and prerogatives as other levels of the Public Power, which the jurisprudence has interpreted with a restrictive character; An example of this can be mentioned the rulings issued by the Administrative Political Chamber No. 01404 dated November 5, 2008 (Case: Municipality of Chacao) or No. 00768 of May 22, 2007 (Case: Iribarren Municipality of Lara State), as well as that of the Second Administrative Court on 02-28-2008 (Case: Pinto Salinas Municipality of the State of Mérida).
Unlike the Organic Law of Municipal Regime, today repealed by the Organic Law of Municipal Public Power (LOPPM, 2010) does not expressly establish the affiliation of the Municipal Trustees.
In this regard, the Political-Administrative Chamber of the Supreme Court of Justice decided by ruling No. 79 of 2009, interpreting the administrative and hierarchical assignment; For this he used several elements such as that his appointment corresponds to the Mayor with the approval of the Municipal Council through a session convened for this purpose, since a similar circumstance occurs at the national and state level, since the Attorney General of the Republic is appointed by the President of the Republic and the Attorneys General in the states through the Governor, having the approval of the legislative bodies: National Assembly and State Legislative Council, respectively.
There is a circumstance that has been maintained over time and that is that the opinions or opinions of the Municipal Court are not binding. However, national laws, state laws or ordinances may express it to the contrary. This is due to the fact that it is a higher consultation body, as is the case with the Attorney General of the Republic or the State, although the LOPPM does not express it.
It should not be overlooked that the Municipal Procurator Trustee has a historical limitation in the procedural powers of administration and disposition, acting as agent of the Entity, which is nothing else that cannot agree, desist, compromise, compromise in arbitrators without prior authorization and in writing from the Mayor or by the competent authority, as is the case with the Municipal Council.
It is important to highlight that when proxies are to be appointed for the legal representation of the Entity, the Mayor must have the permission of the Municipal Attorney General.
It is also the responsibility of the Municipal Trustees to attend to the administrative procedures where the Municipality must be constituted as a “party”, applicant, third party or interested party.
If there is a call - for example - from the Labor Inspectorate to deal with matters related to labor relations derived with workers or contracted personnel, the Sindicatura attends the procedural phases, including appeals.
This is due to the so-called jurisdictional function of the administration for the handling and resolution of opposing interests. It is common to find lawsuits that seek the nullity of orders issued by administrative labor authorities.
Another of the competences where the Receivership acts is in tax matters, where it is attributed the rank of Treasury Prosecutor, which derives from the patrimonial representation of the Entity; It is necessary to remember that the Municipal Treasury is made up of the assets, income and obligations that make up its assets and liabilities.
In the work "Municipal Tributes, Guide for local authorities", whose author is Ada Ramos Oliveros, FUNDACOMUN Publications, Caracas, 1998; This figure is studied from the regulations of the today repealed Organic Law of Municipal Regime, in which it empowers the Municipal Procurator Trustee to act ex officio to carry out inspections and investigations, having to render accounts of their results to the Council or the Mayor.
In the case of the current LOPPM (2010), it can only be requested by the Mayor. In the same sense, when the former performs inspection functions of municipal services, maintaining a restriction as it is the Municipal Comptroller's Office.
There is an aspect of interest for students of Municipal and Administrative Law regarding the dual nature of following instructions from the Municipal Trustees, both the Mayor's Office and the Municipal Council.
In effect, the Organic Law of Municipal Public Power (LOPPM, 2010) imposes on the Municipal Procurator Trustee the obligation, not only to advise both the executive body and the local legislative body, but also the fact of representing it on and off the stage in the patrimonial matters of the Entity.
In fact, the LOPPM uses the expression "follow instructions from the mayor or the Municipal Council, as appropriate" in one of the numerals within the article that regulates the powers of the Municipal Attorney General.
Later, in the same normative text, it refers to financial matters of an economic nature in these terms: "… in accordance with the instructions given by the mayor or the Municipal Council, regarding the rights related to the Municipal Treasury…"
This could lead to confusion, since it seems that the Municipal Syndicate would be in the midst of serious difficulties, should a situation arise in which conflicting instructions are generated, which would be logical from the perspective that the administrative function does not follow the same guidelines as that of parliamentary control.
To this it must be added that the appointment of the Municipal Procurator Trustee corresponds to the mayor with the approval of the municipal council. On the other hand, in order to dismiss him, he is aired before the local legislative power, following the provisions of the LOPPM.
The Organic Law of the Contentious Administrative Jurisdiction (LOJCA, 2010) contemplates the procedure before the emergence of administrative controversies; likewise, in the Organic Law of the Supreme Court of Justice (LOTSJ, October, 2010) it assigns powers to the Highest Court in this matter.
The municipality does not escape these administrative controversies, and it may be - for example - the mayor's office and the municipal council, to center it within these lines.
Professor Allan Brewer Carías, in a work of his authorship on the Organic Law of Municipal Regime, addressed the problem and pointed out at that time that the Receivership should comply with the instructions issued by both bodies, exclusively within the legal framework that concerns them.
This may seem easy to read but - in practice - it could trigger a kind of local crisis if not handled properly. Now, the solution appears casuistically, that is, according to the facts of the situation.
